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South32 Cannington Pty Ltd v Workers' Compensation Regulator[2025] QIRC 215

South32 Cannington Pty Ltd v Workers' Compensation Regulator[2025] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

South32 Cannington Pty Ltd v Workers' Compensation Regulator [2025] QIRC 215

PARTIES:

South32 Cannington Pty Ltd

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2024/56

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

15 August 2025

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

The application to join WC/2024/56 and WC/2024/41 is dismissed.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – OTHER MATTERS – where the Appellant has filed an application in existing proceedings – where the Appellant seeks a joint hearing of two appeals – where the Appellant is an employer appellant in matter WC/2024/56 – where the Appellant is not a party to appeal WC/2024/41 – where the Appellant is the employer of the appellant worker in matter WC/2024/41 – where both matters are appeals of the appellant worker's claim for compensation for two separate injuries said to be sustained during the course of her employment and arising out of, or in relation to, the same incident – where the application to join the proceedings is opposed by the worker and the Regulator in both appeals – whether the two appeals should be determined and heard together – the application in existing proceedings is dismissed

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld), r 98

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32, s 549

CASES:

Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 7

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Reynolds v Workers' Compensation Regulator & Ors [2019] QIRC 140

Reasons for Decision

Introduction

  1. [1]
    South32 Cannington Pty Ltd ('South32') seeks an order that its' workers' compensation appeal proceeding (WC/2024/56) and the workers' compensation appeal proceeding of Ms Jo-Anne Hardie (WC/2024/41) be heard together with the evidence in the one proceeding being the evidence in the other proceeding.
  1. [2]
    The decisions of the Workers' Compensation Regulator ('the Regulator') appealed against by South32 and Ms Hardie are in relation to Ms Hardie's claims for compensation for a psychological injury and a physical injury said to have arisen from a work-related incident whilst employed at South32.
  1. [3]
    Ms Hardie and the Regulator each oppose the application for the proceedings to be joined.

Relevant Background

  1. [4]
    Ms Hardie was employed by South32 in the position of laboratory technician in the wet chemistry laboratory at Cannington Mine, Queensland.

Ms Hardie's Appeal

  1. [5]
    On 1 March 2023, Ms Hardie made an application for compensation for an inhalation injury described as, "inhalation of toxic chemical, possibly bromine, including damage to airway, shortness of breath" ('inhalation injury') said to have occurred through the inhalation of a substance at the wet chemistry laboratory at the Cannington Mine on 17 December 2022.
  1. [6]
    South32 rejected Ms Hardie's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').[1]
  1. [7]
    This decision was confirmed by the Regulator by way of review decision dated 30 January 2024.
  1. [8]
    Ms Hardie appeals the Regulator's decision ('the physical injury appeal').

South32's Appeal

  1. [9]
    On 17 May 2023, Ms Hardie made an application for compensation for a secondary psychological injury which was said to have arisen in connection with the inhalation injury and the incidents of 17 December 2022.
  1. [10]
    On 6 September 2023, South32 issued a decision which rejected Ms Hardie's application for compensation for psychological injury.
  1. [11]
    On 1 March 2024, the Regulator issued its review decision which set aside the decision of South32 to reject Ms Hardie's application for compensation and substituted it with a new decision to accept the application in accordance with s 32(5) of the Act.
  1. [12]
    South32 appeals the Regulator's decision ('the psychological injury appeal').

The Current Application

  1. [13]
    South32 applies pursuant to r 98 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules') seeking the following orders:
  1. Matter WC/2024/56 (Employer's Appeal) and Matter WC/2024/41 (Worker's Appeal) be heard together with the evidence in the one proceedings being the evidence in the other proceedings.
  1. The parties in the Employer's Appeal and the Worker's Appeal are granted leave to cross-examine the witnesses called in both Appeals.
  1. The Directions Order dated 18 March 2024 in the Employer's Appeal and the Directions Order in the Worker's Appeal are vacated and further directions are to be made in both the Employer's Appeal and the Worker's Appeal.

Relevant Statutory Provisions

  1. [14]
    The Commission may join proceedings pursuant to r 98 of the IR Rules, which provides as follows:

98 Joining proceedings 

  1. A party to a proceeding before the court or commission may apply to the court or commission for the proceeding to be joined with another proceeding.
  1. The court or commission may order 2 or more proceedings to be joined if it considers—
  1. substantially the same question is involved in the proceedings; or
  2. the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
  3. it is otherwise appropriate or desirable.
  1. When joining proceedings, it is not necessary—
  1. for a written order joining the proceedings to be made; or
  2. for the parties to consent.

  1. [15]
    In Reynolds v Workers' Compensation Regulator & Ors,[2] his Honour, Vice President O'Connor summarised the relevant law in relation to whether the discretion to join proceedings should be exercised in the following terms:
  1. [5]
    In Humphries v Newport Quays Stage 2A Pty Ltd Besanko J said:

The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows: 

  1. Are the proceedings broadly of a similar nature? 
  2. Are there issues of fact and law common to each proceeding? 
  3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 
  4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 
  5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 
  6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 
  7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? 
  8. Is one proceeding further advanced in terms of preparation for trial than the others? 
  9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
  1. [6]
    Whilst the authorities suggest that a number of factors have been considered relevant in exercising such a discretion, there are no inflexible rules.
  1. [7]
    In Cameron v McBain Herring CJ wrote: 

The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.

  1. [8]
    In Bishop v Bridgeland Securities, Wilcox J said:

The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.

  1. [9]
    In Ghose v CX Reinsurance Co Ltd Austin J said

Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing.  His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings).  A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate.  A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court.  I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings." that the task of the Court is to 'work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, sequential hearing, entirely separate hearings or something else (such as determination of separate questions prior to or after the hearing of the (remainder of the proceedings).[3]

The Application for a Joint Hearing  

South32's submissions

  1. [16]
    South32 submits that the worker's appeal and the employer's appeal are so closely intertwined that a joint hearing is warranted. With reference to the factors set out in Humphries v Newport Quays Stage 2A Pty Ltd,[4] South32 refers to the following factors in favour of the proceedings being joined:
  1. both appeals are of a broadly similar nature;
  1. there are clearly issues of fact and law common to each proceeding in respect of the circumstances of the subject incident and its medical sequelae;
  1. both appeals will require a close examination by the Commission of the incident on 17 December 2022 and the medical attention sought by Ms Hardie soon after, and this examination should be the subject of one hearing before the Commission;
  1. both appeals have lay witnesses in common, including Ms Hardie, who should only have to give evidence on one occasion;
  1. a joint hearing will result in a saving of time and avoid duplication of evidence;
  1. a joint hearing will result in saving costs and outlays for legal fees, the attendance of lay witnesses, and the calling of expert medical witnesses;
  1. it is not apparent that a joint hearing would create any difficulties in respect of trial management, procedural issues and cross-admissibility of evidence, noting that it is a matter of record that the Regulator has engaged different teams to conduct each appeal (ameliorating any purported issues arising from the Regulator conducting evidence-in-chief and cross-examination of Ms Hardie) and it is difficult to envisage the prospect of evidence in either appeal being inadmissible in the corresponding appeal; and
  1. joining the appeals would eliminate the prospect of different but potentially inconsistent findings by the Commission, which would not be in the interest of justice. South32 contends that this would not necessarily be mitigated by the same Commissioner hearing both applications as that Commissioner may still be impermissibly influenced by evidence and submissions from one appeal which has already been heard.

Ms Hardie and the Regulator's position  

  1. [17]
    Ms Hardie and the Regulator in both the physical injury appeal and the psychological injury appeal oppose the application to have the proceedings heard together. Both the Regulator and Ms Hardie have filed submissions in support of their objections.
  1. [18]
    The following factors have been raised by Ms Hardie and/or the Regulator in support of their opposition to the application:
  1. given that the two appeals involve separate and distinct injuries, one physical and one psychological, despite arising out of the same factual matrix, the same question is not involved in both proceedings within the meaning of r 98(2)(a) of the IR Rules;
  1. as was found in the matter of Reynolds, the onus of proof is different in both appeals, as is the mechanism of injury;[5]
  1. there is unlikely to be commonality of expert witnesses because of the substantially different mechanisms of injury;
  1. the decision in the worker's appeal will not be likely to determine or seriously impact on the decision to be made in the employer's appeal within the meaning of r 98(2)(b) of the IR Rules;
  1. the fact that the interlocutory application is opposed by three of the four parties to the two appeals should be given some weight when exercising the discretion under r 98 of the IR Rules;
  1. as each appeal is constituted by different parties, Ms Hardie has not exercised her right to be a party to the employer's appeal pursuant to s 549(3)(a) of the Act, and by consequence of Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) ('Gillow'),[6] South32 does not have any right to be heard in the worker's appeal;
  1. rule 98 of the IR Rules should not be a vehicle by which employers are able to avoid or subvert the decision of Gillow;
  1. it is difficult to conceive how a set of directions can be crafted that would limit or prevent South32 from cross-examining Ms Hardie's witnesses in the physical injury appeal whilst protecting the right of South32 to conduct cross-examination in its own appeal;
  1. with consideration of the steps which would need to be put into place to address the trial management and procedural issues, the Regulator contends that any time saving from joining the two appeals will be limited and would not warrant the joining of the two appeals;
  1. joining the two appeals will result in the Regulator's legal representatives effectively working against each other's case; and
  1. it would simply be impossible if the proceedings were joined for the Regulator in one matter to challenge the credibility of Ms Hardie and make submissions that her evidence should be rejected and then in the other matter contend that Ms Hardie was a reliable witness whose evidence should be accepted.
  1. [19]
    Notwithstanding the above, the Regulator accepts the fact that both appeals arise out of the same factual matrix and there are likely to be issues of fact common to each proceeding are factors that would weigh in favour of the joint hearing of the appeals.
  1. [20]
    South32 acknowledges and accepts the principle in Gillow and submits that it does not seek to circumvent this principle. It is contended that the role in a joint hearing of resisting Ms Hardie's appeal in WC/2024/41 will rest solely with the Regulator and the extent of South32's cross examination would be limited to issues in the proceeding WC/2024/56.

Consideration

  1. [21]
    The Commission has a broad and unfettered discretion to issue an order to join proceedings if one of the three preconditions in r 98(2) of the IR Rules is established. In considering whether the proceedings should be joined, consideration will be had to the factors[7] relevant to such a consideration identified by Besanko J in Humphries and as applied in Reynolds by Vice President O'Connor. 

Are the proceedings broadly similar in nature?

  1. [22]
    It could be said that each of the proceedings are broadly similar in nature as they each involve an appeal of a decision of the Regulator.
  1. [23]
    However, in the circumstances of this matter, the factual and legal issues are such that they must be properly taken into account when considering the similarity between each of the proceedings.

Are the issues of fact and law common to each proceeding?

  1. [24]
    Proceeding WC/2024/41, the physical injury appeal, is an appeal by Ms Hardie of the decision of the Regulator confirming the decision of South32 to reject an application for compensation in relation to a physical injury (described as inhalation of a prescribed toxic substance) said to have been caused on or about 17 December 2022.
  1. [25]
    The parties to the physical injury appeal are Ms Hardie, as the appellant, and the Regulator, as the respondent. Relevantly, South32 is not a party (nor can it be a party) to the physical injury appeal.[8]
  1. [26]
    Proceeding WC/2024/56 is the psychological injury appeal brought by South32 in respect of a decision of the Regulator setting aside a decision rejecting Ms Hardie's application for compensation and substituting it with a new decision to accept Ms Hardie's application for compensation in relation to a psychological injury.
  1. [27]
    The parties to the psychological injury appeal are South32, as the appellant, and the Regulator, as the respondent. Ms Hardie has not elected to be a party in the psychological injury appeal, although it is likely she will be called as a witness by the Regulator.
  1. [28]
    It appears from the material that the factual matrix to both appeals are similar in so far as each appeal will consider events involving Ms Hardie at the workplace on or about 17 December 2022, although it is noted that the psychological injury appeal will also consider events occurring after 17 December 2022.
  1. [29]
    On this basis, South32's submission that the facts of each of the appeals are closely intertwined is accepted.
  1. [30]
    However, the relevance of those facts to each of the separate injuries, the issues at law to be determined and the roles of the various parties differ.
  1. [31]
    In this regard, it is relevant that the claimed injuries are distinct and rely on different causal mechanisms for each injury. Implicit in this is that the determination of the cause of each injury will rely on distinct evidence including medical evidence from separate areas of speciality.
  1. [32]
    Further, the parties to each of the appeals are not the same. Whilst the Regulator is the respondent in each proceeding, the appellants in each proceeding are separate and distinct, each with separate interests. Ms Hardie contends that her application for compensation with respect to the physical injury should be one for acceptance. Whereas South32 contends that Ms Hardie's application for compensation with respect to the psychological injury should be rejected.
  1. [33]
    Accordingly, the party who bears the onus in each appeal and the question to be determined by the Commission is distinct.
  1. [34]
    It follows that the legal issues to be determined are also separate.
  1. [35]
    Consequently, whilst it could be said, in a very broad sense, that the two proceedings are similar in nature, a clearer consideration of each of the appeals including the distinct factual and legal issues to be considered in each appeal weighs against joining the proceedings.

Will witnesses (lay and expert) in one proceeding be witnesses in the other proceeding?

  1. [36]
    South32 submits that it is reasonable to expect that any lay witness will be the same for both proceedings. Given the similar factual matrix to both appeals it is inevitable that there will be lay witnesses common to both appeals. As already noted, to the extent expert evidence is called, each appeal would require evidence from medical practitioners from different areas of speciality.

Will there be a substantial saving of time if the proceedings are tried at the same time compared with each proceeding being tried separately? 

  1. [37]
    South32 submits that it is self-evident that a joint hearing will result in a saving of time and avoid duplication of evidence with subsequent savings in costs.
  1. [38]
    South32's submissions in this regard appear to be prefaced on its' further submissions that a joint hearing would create no difficulties in respect of trial management, procedural issues and cross-admissibility of evidence. For reasons discussed further below, it is not accepted that a joint hearing of the appeals will be without trial management and procedural complications.
  1. [39]
    It is difficult to accept that South32, who makes the application, will save time and costs if the appeals are joined. As already noted, Ms Hardie and the Regulator resist the application and do not consider there will be savings in terms of time or costs.
  1. [40]
    Relevantly, and as will be considered further below, South32 is not a party to, nor does it have a right to be a party to, Ms Hardie's physical injury appeal. Accordingly, if the appeals were to be joined that would relevantly require South32 to be involved in the physical injury appeal including by being present for evidence and submissions in a proceeding to which it is not a party. South32's proposed presence in the physical injury appeal could only add to its costs in terms of time and financial costs.
  1. [41]
    This is a factor which weighs against the discretion from being exercised.

Will an order that the proceeding be tried at the same time create difficulties in terms of trial management, complexity or procedural issues and difficulties in cross-admissibility of evidence?

  1. [42]
    South32 contends that there will be no apparent difficulties in respect of trial management or procedural or evidentiary issues should the appeals be joined. It further contends that if separate appeals were to eventuate then necessarily those separate hearings would have to be conducted by different Commissioners. It contends that this "would ensure that there was no prospect of a single Commissioner having both appeals being impermeably influenced by evidence and submissions from the other appeal on the possibility that different Commissioners may reach different findings on the same evidence".
  1. [43]
    Ms Hardie and the Regulator each reject the submission that there will be no trial management, procedural or evidentiary difficulties should the appeals be joined.
  1. [44]
    Further, the Regulator submits that any concern about the outcome of factual findings made by different Commissioners hearing each of the appeals can be overcome by issuing of a direction that the appeals be heard consecutively, one after the other, by the same Commissioner.
  1. [45]
    The Commission considers that significant trial management, procedural and evidentiary difficulties have the potential to arise if the appeals were to be joined.
  1. [46]
    A number of these difficulties arise from the fact that South32 does not have standing to be a party to, or have a right to be heard in, the physical injury appeal. Further difficulties arise because the Regulator is the only common party in each of the appeals.
  1. [47]
    Turning firstly to the lack of standing of South32 in the physical injury appeal.
  1. [48]
    In Gillow, it was confirmed that the Commission does not have the power to grant an employer leave to appear on appeals under ch 13 pt 3 of the WCR Act. Subsequently, any order that the appeals were to be joined with the consequence that South32 would be joined as a party is inconsistent with the reasoning in Gillow.
  1. [49]
    In such circumstances, it is difficult to comprehend what, if any, directions could possibly be issued to ameliorate such an inconsistency. South32 certainly has not proposed any.
  1. [50]
    Further, a number of logistical difficulties arise due to the role of the Regulator and Ms Hardie in each of the appeals.
  1. [51]
    The Regulator is the Respondent in each of the appeals, however, the issues to be determined, as considered above, are different and, consequently, so is the position and interest of the Regulator.
  1. [52]
    In the physical injury appeal, the Regulator describes itself as having a statutory obligation to defend a decision confirming the rejection of Ms Hardie's physical injury claim. In the psychological injury appeal, the Regulator describes itself as having a statutory obligation to defend a decision which set aside the insurer's rejection of Ms Hardie's psychological injury claim and substituted a decision to accept the claim.
  1. [53]
    Given the onus that is to be discharged by Ms Hardie in the physical injury appeal and South32 in the psychological injury appeal, the role of the Regulator and its interest is distinct in each appeal.
  1. [54]
    Following from this, the role of Ms Hardie in each appeal is distinct and separate. In the physical injury appeal, Ms Hardie is the appellant and will be cross-examined by the Regulator. Given the adversarial nature of the proceedings the Regulator may make submissions in that appeal adverse to Ms Hardie's interests.
  1. [55]
    Conversely, in the psychological injury appeal, Ms Hardie will be called as a witness by the Regulator. In the psychological injury appeal the interests of the Regulator and Ms Hardie are somewhat aligned.
  1. [56]
    A number of potential complications arise from this including that the Regulator may lead evidence from Ms Hardie for the purpose of one appeal but have the right to cross-examine her in the other appeal. The complications and difficulties in terms of trial management, procedural and evidentiary issues that would arise if the appeals were to be joined strongly weighs against the exercise of the discretion to join the proceedings.

Conclusion

  1. [57]
    Despite the fact that the injuries in each of the appeals arise out of the same factual matrix, there are a number of matters which weigh against the exercise of the discretion.
  1. [58]
    These matters include:
  1. that each of the appeals are comprised of separate parties with only the Regulator being the common party in each appeal;
  1. the legal issues to be determined are separate and distinct;
  1. whilst there may be some common lay witnesses, the evidence in relation to the distinct injuries and the causal mechanism of each injury will most likely be the subject of medical experts from different areas of speciality;
  1. there is no obvious saving in time and cost to South32 as it has no right to appear as a party in the physical injury appeal, if anything, joining the proceedings would add to South32's costs in terms of time and financial cost;
  1. an order joining the proceedings would potentially be inconsistent with Gillow as it would permit South32 to be joined to proceedings it does not have standing to be a party to or appear in; and
  1. given the separate interests and roles of Ms Hardie and the Regulator in each of the appeals there would be significant trial management, procedural and evidentiary difficulties that would arise if the proceedings were joined.
  1. [59]
    As noted above, the parties may seek that the proceedings be heard consecutively, one after the other, by the same Commissioner if they consider that to be an efficient case management step.
  1. [60]
    Ultimately, I have formed the view that I should not exercise the discretion to join the appeals pursuant to r 98 of the IR Rules. The appeals do not involve substantially the same question, the decision in one proceeding is not likely to determine or severely impact the other proceeding and it is not otherwise appropriate or desirable to join the matters.

Order

  1. [61]
    As set out in the reasons above, I make the following order:
  1. The application to join WC/2024/56 and WC/2024/41 is dismissed.

Footnotes

[1]South32 is a self-insured employer, in accordance with Part 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). At the relevant time, Allianz Australia Insurance Limited ('Allianz') provided administrative and claims management services on behalf of South32 and authored the decision.

[2][2019] QIRC 140 ('Reynolds').

[3]Reynolds (n 2) [5]-[9] (emphasis in original) (citations omitted).

[4][2009] FCA 699 ('Humphries').

[5]Reynolds (n 2) [44].

[6][2016] ICQ 7 ('Gillow').

[7]As they are relevant to this application.

[8]Gillow (n 6).

Close

Editorial Notes

  • Published Case Name:

    South32 Cannington Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    South32 Cannington Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 215

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    15 Aug 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brisbane City Council v Gillow [2016] ICQ 7
2 citations
Humphries v Newport Quays Stage 2A Pty Ltd (2009) FCA 699
2 citations
Reynolds v Workers' Compensation Regulator [2019] QIRC 140
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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